How to Respond to a Gold Smuggling Charge at Delhi Airport: Essential Legal Advice for alleged Accused of Gold Smuggling at Delhi Airport

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Responding to a heinous charge like gold smuggling under the Customs Act is a daunting task for any common individual; thus, every step shall be taken after a thorough brainstorming session. At the same time, some tasks are such that they shall be done without any delay; that is, such tasks shall be done at the very moment the charge is levied, or on the basis of such a charge the gold of any person is proposed to be seized by the customs authorities.

Let us first discuss the situations under which a person could be charged against smuggling of gold under the Customs Act of 1962 at Delhi Airport or Terminal:
• A person could be mostly charged for the offence of gold smuggling when the customs authorities have reason to believe that the gold which a person possesses or claims to be the owner has been imported or exported illegally, or without the payment of the proper duty. As a result, the customs authorities first step is usually to seize such gold and begin with the adjudication of that matter.
• As per Section 111 and Section 113 of the said Act, the gold of a person can be confiscated on the ground that such gold is being improperly imported or improperly exported. This could include importing, unloading, or attempting to export at or from any customs airport not appointed for the purpose of such gold, or importing or attempting to export through any unspecified route, etc.
• The Section 112 and Section 114 of this said Act provide penalties for the above offence. The former Section provides penalty for improper importation of goods, including gold, and the latter provides penalty for attempts to export improperly goods, including gold.
• As per Section 135 of the said Act, a person involved in misdeclaration of the value of gold or in fraudulent evasion of duty chargeable thereon, or is in any manner dealing with the gold which he knows or has reason to believe is liable to be confiscated under the above provisions, shall be punished for the same act with imprisonment of 7 years and with a fine.

Now, let us discuss the different responses which an accused person can take and make efforts to free himself from the gold smuggling charges:
• As per Section 104 of the said Act, if the customs officers have reason to believe that a person has committed a particular offence, they may arrest such person on that behalf. However, the person arrested has the full right to know about the grounds on which he is being arrested, and these grounds shall be kept in mind as later on the person can challenge the validity of the arrest on those grounds only. Apart from that, once arrested, the person shall ensure that, without any unnecessary delay, he be taken to a magistrate. Now, under the same legal provision, it is also mentioned that if the person does not fall in the offences discussed here as non-bailable, then it shall be presumed that such person has a right to bail as well as his act would fall under the bailable offence category. Thus, even if the person is arrested, he still has certain legal remedies; he just needs to be aware of the law and grounds of arrest.
• As mentioned above that the customs authorities seize the gold of an individual and then frame gold smuggling charges against him. However, to make such a seizure also, the authorities have to comply with certain protocols, and in the absence of such compliance, the gold shall be returned, and the person could be free from gold smuggling charges as well. A few of such protocols are discussed below.
• Section 110 of the said Act states that if the proper officer has reason to believe that the goods, including gold, be confiscated as per the Act, then he may seize such gold. However, its second clause provides that when the gold is seized, a notice of the same has to be provided within six months from the date of such seizure of gold. Now, here the accused has to be vigilant, and if within six months of the seizure no notice is provided, then such person becomes entitled to get the goods returned to the person from whose possession they were seized.
• Section 124 of the said Act states that before making an order for the confiscation of the goods, including gold, a show cause notice has to be issued either to the owner of that gold or the person from whose possession the gold was seized. Such person shall thoroughly go through that show cause notice, as it shall contain the grounds on which the gold is proposed to be confiscated. These grounds could also be later used for challenging the seizure if, at this stage, the no strategy works. This legal provision also ensures that the person to whom the notice is issued is provided reasonable time to make representation in writing against the grounds mentioned in the notice. Also, such person shall also be provided an opportunity of being heard in the concerned matter. Thus, all these protocols ensure that the person gets a fair chance in the case and the general principles of law are followed.
• Section 110-A of the said Act states that if the gold of an individual is seized and an order from the adjudicating authority is pending in the said matter, then the individual can file an application for the provisional release of his gold till the time the adjudication is pending. This provides an opportunity for such an individual to recover his property, although for a temporary period, and ensures the safety of his property. To avail this benefit of provisional release, the person shall make a bond along with such security and conditions as the adjudicating authority deems fit.
• At last, if after the adjudication authority or the customs officers pronounce a decision or order, and it lands to be unfavourable to the person charged under the gold smuggling case, then such person can file an appeal at relevant authorities, such as, under Section 128 of this Act, the aggrieved person can file an appeal to the Commissioner (Appeals) within a period of 60 days from the date of communication of the decision or order to him. The next appeal can be made to the Appellate Tribunal called the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) under Section 129-A. Now, if any person is still aggrieved by these authorities decision or order, such person can file an application to the Central Government under Section 129-DD of the Act to revise the previous order by annulling or modifying the same. Another option is available to the aggrieved person to approach the concerned High Court under Section 130 of this Act, appealing the order passed by the Appellate Tribunal. And the last and final option to appeal against any order of the previous authorities is to the Supreme Court of India under Section 130-E of the said Act.

In conclusion, it would be enough to say that by understanding the legal provisions and preparing for the matter in an effective manner, one can confidently respond to a gold smuggling charge, as he would be having basic clarity of the steps to be taken to protect himself and his property in those situations.
Authored By: Adv. Anant Sharma & Sahil Arora

 

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